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Sunday, 18 April 2010

Indigenous Rights

Over twenty years ago, anthropologists in the Northern Territory accompanied local indigenous people when they went fishing. Drifting well out to sea, with the shore only visible as featureless mangrove swamp on the horizon, they noticed the canoeist suddenly move the boat. When asked why, he replied that this was “other man’s country”.

This happened repeatedly, and in the end, the anthropologists began mapping these boundaries. When they compared these boundaries to a map of the sea bed, they found that in all cases the boundaries corresponded with underwater features – ridges or valleys often as much as 90 metres underwater. The local indigenous people could also pinpoint sacred sites far underwater – places that had not been dry land for over 10,000 years.

The conclusion to which the anthropologists were compelled was breathtaking: this people had retained a cultural memory of the ice age geography of their lands.

A few years ago a friend of mine was staying with the Pitjanjatjara people when two elders returned to their country after a visit to Melbourne. It was their first visit to a big city of any kind.

My friend expected tales of freeways and skyscrapers and aeroplanes – but these things made almost no impression on the elders. Instead, what made an overwhelming impression on them, and the one thing they talked about was the number of unrelated people in Melbourne - people who were not part of any clan. “There are a lot of lonely people in that big city.”

We whitefellas have an immense amount to learn from indigenous culture.

Indigenous policy in Australia represents 200 years of political failure. We have lurched from segregation, to assimilation, then integration, then from ATSIC to “mainstreaming” and now the "intervention".

It is tempting to despair, but the problems of the relations between indigenous Australians and white Australians are human-created problems, and they are capable of solution by humans.

For years we justly criticised the apartheid system in South Africa. We said that the black people there should be given a vote, and boasted that Aboriginal Australians had the vote.

But with Aboriginal Australians making up a tiny minority of our population, it cost the majority nothing to give them the vote. We whitefellas will continue to control things because our majoritarian system means that whoever gets the numbers can dictate government policy.

Our Constitution still contains some alarming provisions, like s 25:

For the purposes of the last section, if by the law of any State all persons of any race are disqualified from voting at elections for the more numerous House of the Parliament of the State, then, in reckoning the number of the people of the State or of the Commonwealth, persons of the race resident in that State shall not be counted.

Whatever else may be said, this demonstrates the profound gulf between government policies and the reality on the ground.

Tragically, the abuse and violence is not new, nor is it confined to Aboriginal Australia.

Care must be taken when speaking of Aboriginal Australia – we are discussing many diverse communities, language groups and cultures. Where there are problems, the causes and effective solutions will often be widely differing.

Sexual abuse usually involves ‘one on one’ crimes that often occur in a close relationship or dysfunctional family context. The World Health Organisation has identified overcrowded living conditions, resultant high levels of stress, and poverty as key risk factors associated with child abuse. In the case of Wadeye, where over 2,500 people share just 148 dwellings, and where government expenditure is significantly lower than for other Territorians, all these risk factors are present.

In Wadeye the traditional owners play host to members of many other communities who live with them, a recipe for tension. The local elders have in fact called for more police for years – with no appreciable success. The government said there was nowhere to house them.

Federal leaders insist that parents send their children to school. There are low attendance rates at school in many Aboriginal communities, for a variety of reasons. How have we shown that education is really worthwhile for Aboriginal Australians? Will the education be relevant to their needs? Will attendance earn jobs for them? Aboriginal unemployment is at astronomical levels. And is there proper educational infrastructure anyway? In the case of Wadeye, there were not enough desks or even pencils for the young children in the community.

Traditional Aboriginal customary law in no way condones domestic violence or sexual abuse.

Former Prime Minister John Howard asserted that Aboriginal problems arose because the courts have applied misguided notions of customary law rather than Australian law - and banned courts from considering customary law. This approach reinforces racist stereotypes which do further violence to the harmony of our community.

The Australian Law Reform Commission recently reported on the importance of traditional law in the lives of Aboriginal Australians, and recommended recognition of traditional law. But sadly Kevin Rudd has announced that the ban on considering traditional law will continue.

When courts impose sentences, they must – under Australian law – take account of all the personal circumstances of the offender. That includes cultural factors. Courts can make mistakes, and there is an appeal process to minimise this. Equality before the law does not mean treating unequals equally – that merely perpetuates inequality. To require that Aboriginal offenders (unlike white offenders) should not have their personal cultural factors considered in sentencing is to doom the criminal justice process to the same kind of irrelevance as the former Federal Government’s praise for the Wadeye Council.

Recent calls for an end to cultural sensitivities in sentencing of Aboriginal offenders should be seen for what they are – calls for longer jail terms for indigenous peoples. It is as if we have learnt none of the lessons from the Aboriginal Deaths in Custody Royal Commission.

We are not the only nation to confront these difficulties: the post-colonial world has had to confront the tension between indigenous peoples and more recent arrivals repeatedly. We can learn from the experience of others. That shared wisdom is embodied in the great UN human rights instruments.

The right of all peoples to self-determination is prominent in the UN Charter and has pride of place in the human rights covenants. Self-determination involves different levels of political emancipation. It can involve complete political independence (“external self-determination”) - as with the separation of Slovakia from the Czech Republic. However, in the vast majority of cases it involves different levels of recognition within the framework of the State - “internal self-determination”.

Despite scare-mongering by some political leaders, self-determination does not require political dismemberment of a nation.

In order to be able to exercise the right to self-determination, the UN has noted that a community must have adequate resources to do so. The UN Human Rights Committee has also held that extinction of inherent aboriginal rights is incompatible with this right.

When it imposed the Northern Territory intervention, the Howard government suspended laws against racial discrimination. It failed to adopt the recommendations of the "Little Children Are Sacred" report (which it used to justify its actions), or consult its authors, or indeed the indigenous communities themselves.

Most of us took it as a matter of course that the intervention would be ended - or at least brought into line with human rights principles - when Kevin 07 assumed office. But that did not happen.

This year the UN Special Rapporteur on Indigenous Peoples, James Anaya, has examined the Northern Territory Intervention, and consulted persons affected, and sought all available evidence. His conclusion was clear: the intervention is in breach of our international human rights obligations, and "involves racial discrimination". He identified several ways in which the intervention impaired the rights of indigenous persons. He reported that indigenous people repeatedly told him that the measures - including the requirement to produce their bright green "basics card" in order to shop at the supermarket - were demeaning and humiliating.

We Australians have a proud tradition in the field of human rights. Australia helped pioneer so many advances - the eight hour day, free universal education, women's suffrage - and it was an Australian Attorney-General who presided over the passage of the Universal Declaration of Human Rights in the United Nations.

But we are trashing that record. On 13th September 2007 the UN General Assembly overwhelmingly passed the Declaration on the Rights of Indigenous Peoples. 143 countries voted in favour, and only four countries voted against - one of them being Australia.

There are no quick or easy solutions to the problems of Aboriginal Australia. And the best strategies will vary from community to community. However, there are ways forward.

The international human rights framework has near universal acceptance. That framework represents a sharing of world wide experience in upholding the dignity of the human person, and it will be a very helpful guide along the way.

We should look to the leaders of indigenous communities for solutions, but we should also find ways to partner them with those in the whitefella community who have specialist skills they need.

White Australia would be enriched if we listened to Aboriginal Australia. And we will be larger as a community when we take the steps necessary to uphold the dignity of Aboriginal Australians.